ABA director continues exploration of legal profession’s future

From left to right is Matthew J. Wilson UA Law Dean and professor of law, Art Garwin, deputy director American Bar Association Center for Professional Responsibility, Jack P. Sahl, professor of law and faculty director of The Joseph G. Miller and William C. Becker Center for Professional Responsibility and Frank E. Quirk, director of The Joseph G. Miller and William C. Becker Institute for Professional Responsibility. Garwin spoke recently at the UA Law's Joseph G. Miller and William C. Becker Center for Professional Responsibility as a part of the center's Access to Justice Lecture Series. (Photo by Natalie Peacock/Legal News).

NATALIE PEACOCKLegal News Reporter
Published: April 29, 2015

In the ongoing debate about the future of the legal system, Art Garwin recently outlined the possibilities in his presentation, “Three Minutes to Midnight: Applying the Doomsday Clock to the Legal Profession,” at The University of Akron School of Law.

Garwin, director of The American Bar Association Center for Professional Responsibility, spoke as part of The Joseph G. Miller and William C. Becker Center for Professional Responsibility Access to Justice Lecture Series. One of the efforts of the ABA center is to propose new approaches that are not limited by the traditional ways of delivering legal services.

The development of technology has been responsible for many new innovations.

“Everyone is probably familiar with Legal Zoom and its choose-your-own-document service,” Garwin said. “There are a growing number of variations out there. I’ve seen this website which allows you to upload your own documents and have it compared through a computer program with similar documents in their database to show you what’s common, what’s unusual, and what’s missing.”

Another website goes so far as suggesting that hiring a lawyer to review a common agreement is expensive, Garwin said. He also pointed out that this particular website echoes common beliefs about hiring legal representation: it is often “a hassle” to find a lawyer and then the consumer is forced to wait until that lawyer gets back to his client. So how does it benefit the legal profession to point out these shortcomings of hiring a lawyer, Garwin asked his audience.

“There’s no current benefit to the legal profession as we currently define it,” he said. “If, however, we change the dialogue from a discussion about lawyers to a discussion about deliverers of legal services, the benefit analysis may change.”

Others argue that these self-help services do a disservice to those who use them, Garwin said. Another consideration is the issue of the unauthorized practice of law. A case litigated in Texas in 1999 showed a company violated the unauthorized practice of law statute. However, after the case was reviewed by the United States District Court for the Northern District of Texas, the law was amended.

“The practice of law does not include the design, creation, publication, distribution, display or sale… if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.” Garwin said.

The Texas task force that recommended this amendment also stated that the legal profession must start moving forward to modernize regulation of the practice of law, as it exists today. Other states have been less explicit as to whether a self-help site is giving legal advice or merely providing an objective process through an algorithm not dependent on subjective analysis.

“For these purposes I would suggest that, at least for now, a computer algorithm probably should be considered a lay person, not a lawyer,” Garwin said. “Even if a lawyer created the algorithm.”

Whether the lawyer creates an electronic form, Garwin said, is less important than whether the users are taking all the correct steps by choosing and completing a form when the lawyer is there to provide individual advice.

“Are we so in love with the convenience of technology that we’re willing to sacrifice other important considerations?” Garwin said. “Is such a sacrifice necessary? Or can we create a system that promotes convenience, affordability and confidence?”

In 2002, the ABA committee on research about the future of the legal profession offered two goals: do-it-yourself services and the unbundling of legal services.

“If we insert a lawyer into the online production process in an affordable price for the users of these types of services, to at least give them some affirmation or redirection, then we’ve accomplished something,” Garwin said.

One law firm website promotes its ability to provide attorney document preparation services for clients who are interested in representing themselves. Another firm offers unbundled legal services in which the client chooses the document he needs and then fills out an online questionnaire. The document is prepared and the client is notified when it is ready. Legal advice and instructions are also provided to the client. Garwin said there is no reason for lawyers to give up on the self-help part of the market.

“Don’t we think that someone who initially may not be inclined to go to a lawyer, particularly if the trepidation is cost-related, may be appreciative of and willing to pay for a low-cost opinion as to whether their self help is headed in the right direction?” Garwin asked.

Yet another futuristic concept for the legal profession is the concept of preventative law.

“Other professions have done a much better job of promoting themselves to the public as necessary,” Garwin said. “We’ve been trained to get an annual physical, eye exam and dental check up. Why not a legal check up every year?”

The current commission on the future of legal services wants to examine to what extent those who are not licensed to practice law should be permitted to have an ownership interest in law firms, Garwin said. This topic, first raised more than 30 years ago, is still in the talking stages.

“Ten or 20 years from now, will we still recognize the legal profession?” he said. “Will the clock that for what we currently call the legal profession be closer or farther from midnight? Does that matter if we can find better ways to deliver legal services to everyone who needs them in a competent, efficient and economical way?”

If the legal profession does not eventually embrace change, Garwin asked, is it facing certain death?

“Is this a no-win scenario to test the character of the profession or can we avoid death and win by changing the rules just as Captain Kirk did?” he said, using a Star Trek reference. “We have a lot of challenges and a lot of opportunities.”

For more information on the lecture series and The University of Akron School of Law visit www.uakron.edu/law/.